ACT NO.

13 of 2008 - Anti-Counterfeit Act

An Act of Parliament to prohibit trade in counterfeit goods, to establish the Anti-Counterfeit Agency, and for
connected purposes ENACTED by the Parliament of Kenya, as follows–

Interpretation. 2. In this Act, unless the context otherwise requires–

“Agency” means the Anti-Counterfeit Agency established under section 3;
“Commissioner” shall have the meaning assigned to it under the Kenya
Revenue Authority Act;
“complainant” means a person, institution, government agency or state
corporation entitled to lay a complaint under section 33 (1), or who has laid such a
complaint;
“counterfeiting” means taking the following actions without the authority of the
owner of intellectual property right subsisting in Kenya or elsewhere in respect of
protected goods-
(a)the manufacture, production, packaging, re-packaging, labelling or making,
whether in Kenya or elsewhere, of any goods whereby those protected goods are
imitated in such manner and to such a degree that those other goods are identical or
substantially similar copies of the protected goods;

b) the manufacture, production or making, whether in Kenya or elsewhere, the

subject matter of that intellectual property, or a colourable imitation thereof so
that the other goods are calculated to be confused with or to be taken as being the
protected goods of the said owner or any goods manufactured, produced or made
under his licence;

c) the manufacturing, producing or making of copies, in Kenya or elsewhere, in

violation of an author’s rights or related rights;

d) in relation to medicine, the deliberate and fraudulent mislabelling of medicine

with respect to identity or source, whether or not such products have correct
ingredients, wrong ingredients, have sufficient active ingredients or have fake
packaging;

Provided that nothing in this paragraph shall derogate from the existing provisions
under the Industrial Property Act.
“counterfeit goods” means goods that are the result of counterfeiting, and
includes any means used for purposes of counterfeiting;
“counterfeit goods depot” means a place designated as such under section 29;
“document” includes a tape recording, a photograph and any electronic,
magnetic or other medium on, in, or by means or by way of which, images, sound, data
or information may be stored;
“exporter” includes any person who, at the relevant time–
(a) is the owner or is in control or possession of any goods exported or to be

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 exported from Kenya;

(b) carries the risk for any goods so exported or to be so exported;

c) represents that, or acts as if, he is the exporter or owner of any goods so

exported or to be so exported;

d) actually takes, or attempts to take, any goods from Kenya;

e) has a beneficial interest, in any manner or of any nature whatsoever, in any

goods so exported or to be so exported; or

f) acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e),
and, in relation to imported goods destined for exportation from Kenya,
includes the manufacturer, producer, maker, supplier or shipper of those goods
or any person inside or outside Kenya representing or acting on behalf of such
a manufacturer, producer, maker, supplier or shipper;
“importer” includes any person who, at the relevant time–
a) is the owner or is in control or in possession of any goods imported or to be
imported into Kenya;

b) carries the risk for any goods so imported or to be so imported;

c) represents that, or acts as if, he is the importer or owner of any goods so

imported;

d) actually brings, or attempts to bring, any goods into Kenya;

e) has a beneficial interest, in any manner or of any nature whatsoever, in any

goods so imported or to be so imported;

f) acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e);
“inspector” means a person appointed as such under section 22;
“intellectual property right” includes–
a) any right protected under the Copyright Act;

b) any plant breeders' right granted under the Seeds and Plant Varieties
Act;

c) any right protected under the Trade Marks Act; and

d) any right protected under the Industrial Property Act;

“Minister” means the Minister for the time being responsible for matters
relating to industrialization;
“owner” in relation to an intellectual property right, includes a person who has
the capacity in law to enforce the intellectual property right in his own name;
“package” means any container, wrapping or outer cover and the contents
thereof, or any bundle or single piece in the case of unpacked goods;
“prescribed” means prescribed by regulations made under section 37;
“protected goods” means–
(a) .goods featuring, bearing, embodying or incorporating the
subject matter of an intellectual property right with the authority

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 of the owner of that intellectual property right, or goods to which
that subject matter has been applied by that owner or with his
authority;

(b) .any particular class or kind of goods which, in law, may

feature, bear, embody or incorporate the subject matter of an
intellectual property right only with the authority of the owner of
that intellectual property right, or to which that subject matter may
in law be applied, only by that owner or with his authority, but
which has not yet been manufactured, produced or made, or to
which that subject matter has not yet been applied, with the
authority of or by that owner, whichever is applicable;
“tools” include machinery and equipment;
“trade” includes business and profession; and
“vehicle” includes any motorcar, van, truck, trailer, caravan, cart, barrow, train,
aircraft, ship, boat or other vessels, and any other vehicle, craft or means of conveyance
of any kind whatsoever, whether self-propelled or not, as well as any pack animal.

3. (1) There is hereby established an Agency to be known as the Anti-Counterfeit Agency.

(2) The Agency is a body corporate with perpetual succession and a common seal and shall, in its
corporate name, be capable of–
(a) .suing and being sued;
(b) .taking, purchasing or otherwise acquiring, holding, charging or disposing of movable
and immovable property;
(c) .borrowing and lending money;
(d) .charging fees for services rendered by it;
(e) .entering into contracts; and
(f) .doing or performing all such other things or acts necessary for the proper
performance of its functions under this Act, which may lawfully be done by a body
corporate.
Functions of the 5. The functions of the Agency shall be to–
Agency. (a) .enlighten and inform the public on matters relating to counterfeiting;
(b) .combat counterfeiting, trade and other dealings in counterfeit goods in Kenya
in accordance with this Act;
(c) .devise and promote training programmes on combating counterfeiting;
(d) .co-ordinate with national, regional or international organizations involved in
combating counterfeiting;
(e) .carry out any other functions prescribed for it under any of the provisions of
this Act or under any other written law; and
(f) .perform any other duty that may directly or indirectly contribute to the
attainment of the foregoing.
Board of the 6. (1) The management of the Agency shall vest in a Board which shall consist of–
Agency. (a) .a Chairman appointed by the Minister;
(b) .the Permanent Secretary in the Ministry for the time being
responsible for matters relating to industrialization or his

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 representative;
(c) .the Permanent Secretary in the Ministry for the time being
responsible for matters relating to trade or his representative;
(d) .the Permanent Secretary in the Ministry for the time being
responsible for matters relating to finance or his representative;
(e) .the Attorney-General or his representative;
(f) .the Commissioner for Customs Services or his representative;
(g) .the Executive Director of Kenya Copyright Board or his
representative;
(h) .the Managing Director of Kenya Industrial Property Institute or his
representative;
(i) .the Managing Director of the Kenya Plant Health Inspectorate
Service or his representative;
(j) .the Managing Director of the Kenya Bureau of Standards or his
representative;
(k) .the Chief Executive of the Kenya Association of Manufacturers or
his representative;
(l) .the Executive Director appointed under section 10;
(m) .the Registrar, Pharmacy and Poisons Board; of Internal Trade or
his representative;
(n) .one person from the private sector with knowledge in intelectual
property rights appointed by the Minister; and
(o) .one person from the private sector with knowledge in consumer
protection appointed by the Minister.
(2) A person shall not qualify to be appointed as Chairman under subsection (1)
(a) unless such person is a holder of a degree in law or science from a recognised
institution, and has at least five years working experience in the field of trade, industry
or intellectual property.
Powers of the 7. The Board shall have all powers necessary for the proper performance of its
Board. functions under this Act and in particular, but without prejudice to the generality of the
foregoing, the Board shall have power to–
(a) .formulate, with approval of the Minister, policies pertaining to the
organisation, management and implementation of the objects of the Agency;
(b) .control, supervise and administer the assets of the Agency in such manner as
best promotes the purposes for which the Agency is established;
(c) .determine the provisions to be made for capital and recurrent expenditure
and for reserves of the Agency;
(d) .receive any grants, gifts, donations or endowments on behalf of the Agency
and make legitimate disbursements therefrom;
(e) .enter into association with such other bodies or organizations within or
outside Kenya as the Board may consider desirable or appropriate and in furtherance
of the purposes for which the Agency is established;
(f) .open a banking account or banking accounts for the funds of the Agency;
and
(g) .invest any funds of the Agency not immediately required for its purposes in
the manner provided for in section 21.

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Conduct of 8. (1) The conduct and regulation of the business and affairs of the Board shall be as
business and provided for in the Schedule.
affairs of the (2) Except as provided for in the Schedule, the Board may regulate its own procedure.
Board.
Remuneration 9. The members of the Board shall be paid such remuneration, fees, allowances and
of Board disbursements for expenses as may be approved by the Minister for the time being
members. responsible for finance, on the recommendation of the Board.
Executive 10. (1) There shall be an Executive Director of the Agency who shall be appointed by
Director. the Board, and whose terms and conditions of service shall be determined by the
Board in the instrument of appointment or otherwise in writing from time to time.
(2) A person shall not be appointed as an Executive Director under this section unless
such person–
(a) .has a degree in law, science, information technology or business
administration from a recognized institution and has at least three years working
experience in the relevant field; or
(b) .has at least seven years working experience in matters relating to trade or
industry.
(3) The Executive Director shall–
(a) .be an ex-officio member of the Board but shall have no right to vote at any
meeting of the Board;
(b) .be the secretary to the Board;
(c) .subject to the directions of the Board, be responsible for the day to day
management of the affairs of the Agency;
(d) .be responsible to the Board generally for supervision of inspectors; and
(e) .be responsible to the Board generally for the implementation of this Act.

Staff of the 11. The Board may appoint such officers, agents and other staff of the Agency as are
Agency. necessary for the proper discharge of its functions under this Act or any other written
law, upon such terms and conditions of service as the Board may determine.
The common 12. (1) The common seal of the Agency shall be kept in the custody of the Executive
seal. Director or of such other person as the Board may direct, and shall not be used except
upon the order of the Board.
(2) The common seal of the Agency, when affixed to a document and duly
authenticated, shall be judicially and officially noticed, and unless and until the
contrary is proved, any necessary order or authorization by the Board under this section
shall be presumed to have been duly given.
(3) The affixing of the common seal of the Agency shall be authenticated by the
signature of the Chairman of the Board and the Executive Director:
Provided that the Board shall, in the absence of either the Chairman or the Executive
Director, in any particular matter, nominate one member of the Board to authenticate
the seal of the Agency on behalf of either the Chairman or the Executive Director.
Delegation by 13. The Board may, by resolution either generally or in any particular case, delegate to

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the Board. any committee of the Board or to any member, officer, employee or agent of the Board,
the exercise of any of the powers or the performance of any of the functions or duties of
the Board under this Act or under any other written law.
Protection from 14. (1) No matter or thing done by a member of the Board or by any officer, member of
personal staff or agent of the Agency shall, if the matter or thing is done bona fide for executing
liability. the functions, powers or duties of the Agency, render the member, officer, employee or
agent or any person acting on his directions personally liable to any action, claim or
demand whatsoever.
(2) Any expenses incurred by any person in any suit or prosecution brought against him
in any court in respect of any act which is done or purported to be done by him under
the direction of the Agency, shall, if the court holds that such act was done bona fide,
be paid out of the general funds of the Agency, unless such expenses are recovered by
him in such suit or prosecution.
Liability of the 15. The provisions of section 14 shall not relieve the Agency of the liability to pay
Board for compensation or damages to any person for any injury to him, his property or any of
damages. his interests caused by the exercise of any power conferred by this Act or by any other
written law or by the failure, whether wholly or partially, of any works.
Liability for 16. (1) Any person who suffers damage or loss caused by wrongful seizure, removal or
damage or loss detention of goods alleged to be counterfeit goods pursuant to a complaint laid with the
on application Executive Director in accordance with the provisions of this Act, shall be entitled to
of Act. claim compensation for the damage or loss suffered by him against the complainant:
Provided that compensation shall only be paid where the complaint was false, negligent
or laid in bad faith.
(2) The Agency, inspector or person in charge of the relevant counterfeit goods depot
shall be liable in respect of a claim mentioned in subsection (1) only if–
(a) .in the seizure or removal of the alleged counterfeit goods, the inspector, or, in
the detention and storage of those goods, the person so in charge, depending on the
circumstances, has been grossly negligent; or
(b) .the inspector or the person so in charge, as the case may be, in the seizure,
removal, detention or storage of those goods, acted in bad faith.
(3) Reference in subsection (2) (a) and (b) to an inspector or to a person in charge of a
counterfeit goods depot shall be construed to include any person acting on the
instruction or under the supervision of the inspector or the person so in charge, as the
case may be.

Appointment 22. (1) The Board shall, for purposes of enforcing the provisions of this Act, appoint
of inspectors. such number of inspectors as the Board may consider appropriate and shall issue to
them, in writing or in such form as may be prescribed, certificates of authority to act as
inspectors.
(2) A person appointed as an inspector under subsection (1) shall—
(a) .hold office subject to such terms and conditions as the
Board may determine;

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 (b) .have full police powers in the exercise of their duties under
this Act
(3) In addition to inspectors appointed under subsection (1), any member of the
Board, police officer, authorised customs officer, trade development officer, industrial
development officer, trade mark and patent examiner, seed and plant inspector, public
health inspector, and inspectors appointed under the Standards Act, the Weights and
Measures Act, the Copyright Act, the Food, Drugs and Chemical Substances Act, the
Pharmacy and Poisons Act and the Pest Control Products Act are hereby designated as
inspectors for purposes of this Act.
(4) The Board may designate other public officers to be inspectors for purposes
of this Act.
(5) The Board may amend or withdraw appointment of inspectors or designated
inspectors under this section.
(6) Appointment of inspectors under this section shall be by notice in the
Gazette.
Powers of 23. (1) An inspector may at any reasonable time–
inspectors. (a).enter upon and inspect any place, premises or vehicle at, on or in which goods that
are reasonably suspected of being counterfeit goods are to be found, or on reasonable
grounds are suspected to be manufactured, produced or made, and search such place,
premises or vehicle and any person found in such place, premises or vehicle, for such
goods and for any other evidence of the alleged or suspected act of dealing in
counterfeit goods, and for purposes of entering, inspecting and searching such a
vehicle, an inspector may stop the vehicle, wherever found, including on any public
road or at any other public place;
(b) .take the steps that may be reasonably necessary to terminate the
manufacturing, production or making of counterfeit goods, or any other act of dealing
in counterfeit goods being performed, at, on or in such place, premises or vehicle, and
to prevent the recurrence of any such act in future:
Provided that those steps shall not include the destruction or alienation of the relevant
goods unless authorized by an order issued by a court of competent jurisdiction;
(c).seize detain, and, where applicable, remove for detention, all the goods in question
found at, on or in such place, premises or vehicle;
(d) .seize detain, and, where applicable, remove for detention, any tools which may
be used in the manufacturing, production, making or packaging of those goods or
applying a trade mark or that exclusive mark on such goods;
(e). if he reasonably suspects that a person at, on or in such place, premises or vehicle
may furnish any information with reference to any act of dealing in counterfeit goods–
(i) .question that person and take down a statement from him;
(ii) .demand and procure from that person any book, document, article, item or object
which in any way may be relevant to nature, quantity, location, source or destination of
the goods in question, or the identity and address of anyone involved or appears to be
involved as a supplier, manufacturer, producer, maker, distributor, wholesaler, retailer,
importer, exporter or clearing and forwarding agent of, or other dealer in, the goods in
question; and
(f) . seal or seal off any place, premises or vehicle at, on or in which-
(i) .the goods in question are found, or are manufactured, produced or made, either

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 wholly or in part;
(ii) .any trade mark, any exclusive mark or any work which is the subject matter of
copyright, is applied to those goods;
(iii) .the packaging for those goods is prepared; or
(iv) .the packaging of those goods is undertaken.
(2) Nothing in this section shall be construed as requiring a person to answer any
question or give any information if to do so might incriminate him.
(3) An inspector may arrest, without a warrant, any person whom he suspects upon
reasonable grounds of having committed any offence under this Act and may search
and detain such a person:
Provided that no person shall be arrested under this section unless he obstructs or
hinders the inspector or refuses to give his name and address to the inspector or to
produce to him satisfactory evidence of his identity, or gives a name and address which
the inspector has reason to believe to be false or it appears to the inspector that such a
person may not be found or made answerable to justice without unreasonable delay,
trouble or expense.

Obstruction 24. (1) A person who–

and breaking of (a). willfully obstructs an inspector in the discharge of his duties;
seal. (b) willfully fails to comply with any requirement properly made to him
by an inspector;
(c).without reasonable cause, fails to give to an inspector any assistance
or information which the inspector may reasonably require of
that person for the purpose of the performance of his duties
under this Act; or
(d) .in giving any such information as is mentioned in paragraph (c),
makes any statement which he knows to be false or does not
believe to be true,
commits an offence.
(2) A person who, without authority –
(a) .breaks, damages or tampers with a seal applied by an inspector
under this Act; or
(b) .removes any goods, documents, articles, items, objects or things
sealed or sealed-off by an inspector or detained or stored at a
counterfeit goods depot under this Act,
commits an offence.
Duty of 25. (1) An inspector who has seized any suspected counterfeit goods in accordance with
inspector upon section 23 shall –
seizure of (a).forthwith seal, clearly identify and categorize the goods and prepare, in
goods. quadruplicate, an inventory of such goods in the prescribed form and cause the person
from whom the goods are seized to check the inventory for correctness, and, if correct,

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 cause that person to make a certificate under his signature on each copy of the
inventory and if the seized goods are removed under paragraph (c), the inspector shall
endorse that fact under his signature on every copy of the inventory, in which case the
inventory shall also serve as a receipt;
(b) .furnish one copy of the inventory to the person from whom the goods are seized
and another to the complainant, if any, within five working days after the seizure;
(c).as soon as possible, remove the goods, if transportable, to a counterfeit goods depot
for safe storage, or, if not capable of being removed or transported, declare the goods to
have been seized in situ, and seal off or seal and lock up the goods or place them under
guard at the place where they were found, and thereupon that place shall be deemed to
be a counterfeit goods depot; and
(d) .by written notice, inform the following persons of the action taken by the
inspector under section 23 (1) and of the address of the counterfeit goods depot where
the seized goods are kept–
(i) .the person from whom those goods are seized; and
(ii) .either the complainant, where the inspector exercised his powers pursuant
to a complaint laid in accordance with section 33 (1); or
(iii) .the person who, in relation to those goods, qualifies under section 33(1)
to be a complainant, but who had not yet so laid a complaint at the time when the
inspector exercised those powers on his own initiative in accordance with section 33(4).
(2) An inspector may require a complainant to disclose any additional information,
which may be relevant to the action that has been taken.
(3) Any person aggrieved by a seizure of goods under section 23 may, at any time,
apply to a court of competent jurisdiction for a determination that the seized goods are
not counterfeit goods and for an order that they be returned to him.
(4) The court may grant or refuse the relief applied for under subsection (3) and make
such order as it deems fit in the circumstances, including an order as to the payment of
damages and costs.

Evidence and 26. (1) Copies of any statement taken down or other documentary evidence procured
presumptions. by an inspector in the course of exercising his powers under this Act, may be made
available to a complainant upon an application in the prescribed manner.
(2) In any civil proceedings concerning an act of dealing in counterfeit goods
by any person, it shall be permissible to present evidence about that person's
conviction or convictions on account of an offence or offences founded on acts of
dealing in counterfeit goods.
(3) A statement made by an inspector to the effect that the goods specified in
the inventory attached to that statement are goods seized by him from a specified
person at a specified place and on a specified date shall be prima facie evidence of the
facts stated therein concerning the counterfeit goods or any act of dealing therein.
(4) Where the subsistence of an intellectual property right in respect of
protected goods or any person's title to or interest in such intellectual property right is
in issue in any civil or criminal proceedings concerning counterfeit goods, the
substance of, title to or interest in such intellectual property right, where it is alleged
to encompass the rights in respect of industrial property as contemplated in the

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 definition of "intellectual property right" in this Act, may be proved in accordance
with the provisions of the various industrial property legislation.
(5) Where the subsistence of intellectual property right in respect of suspected
counterfeit goods or the title or interest in intellectual property right is in issue, the
complainant shall be presumed to be the owner of the copyright or the related right or,
as the case maybe, the exclusive licensee of any such right, until the contrary is
proved.
(6) Where a name or mark purporting to be that of the author of a work or the
owner of copyright or related rights is either associated with copies of a work or other
protected subject matter, or its related packaging, or appears in connection with a
work or other protected subject matter, this shall be admissible as evidence of the fact
indicated and such evidence shall be presumed to be correct, until the contrary is
proved.
(7) Subsections (4), (5) and (6) shall not be construed so as to detract from the
power of a court, in relation to any such matter or any aspect thereof–
(a) .to require oral evidence to be given;
(b) .to order that the evidence of a person who resides or is for
the time being outside the area of jurisdiction of the court, be
taken by means of interrogatories.
(8) Where any person who trades in protected goods featuring, bearing,
incorporating or embodying the subject matter of particular intellectual property right
is proved to have been found in possession of suspected counterfeit goods to which
the subject matter of the same intellectual property right has been applied, it shall, in
any civil or criminal proceedings concerning an act of dealing in counterfeit goods
found in his possession, be presumed, until the contrary is proved, that such person
was in possession of the goods for the purpose of trade if the quantity of those goods
is more than that which, in the circumstances, reasonably may be required for his
private and domestic use.
Storage and 27. (1) Goods that have been seized under section 23 (1) shall be stored and kept in
access to seized safe custody at a counterfeit goods depot until the person in charge of the depot–
goods. (a).is ordered by a court to return, release, destroy or otherwise dispose of those goods
as specified in the order:
Provided that in the case of counterfeit goods, such goods shall be destroyed at the
expense of the local manufacturer or importer, as the case may be, based on the
environmental considerations and the capacity of the country to destroy the goods, or
shall be reshipped.
(b) .is directed by an inspector under section 28 to release the goods to the
person from whom they were seized.
(2) Upon an application in the prescribed manner, goods seized under section 23(1)
shall, within five working days, be made available for inspection by the complainant
or prospective complainant, if any, the suspect or any other interested person, at the
counterfeit goods depot at any reasonable time.
(3) Upon an application in the prescribed manner, the Executive Director may make a
sample of the seized goods available within a period of five working days to the
applicant for testing or analysis.
(4) An inspector may take, in the prescribed manner, samples of goods in reasonable

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 quantities for testing or analysis.
Release of 28. (1) Where any goods are seized and detained under section 23, they shall be
seized goods. returned, less any portion thereof which has been reasonably utilized for the purpose
of any test or analysis, to the person from whom they were seized within a period of
three months after the date of seizure unless, within such period, some person is
charged with an offence under this Act and it is alleged that such offence was
committed in relation to or in connection with such goods.
(2) Where a prosecution for an offence under this Act is commenced within the period
mentioned in sub-section (1), and any person is convicted of that offence, the court
which made the conviction may order that any goods seized and detained in relation
to or in connection with which such offence was committed shall be forfeited to the
Government for destruction at the expense of the person so convicted.
(3) The court before which a person is charged with an offence under this Act shall,
whether such person is convicted of the offence or not, order that any goods in his
possession which appear to the court to be counterfeit goods or to be tools used or
intended to be used for making counterfeit goods, be destroyed or otherwise dealt
with as the court may deem appropriate.
(4) Where a person charged with an offence under this Act absconds and does not
appear in court or where counterfeit goods are seized but are not claimed, an inspector
may apply to have the counterfeit goods forfeited to the State for destruction.
Counterfeit 29. (1) The Board may, by notice in the Gazette, designate any place to be a
goods depot. counterfeit goods depot for the purposes of this Act.
(2) The Board shall appoint a fit and proper person to be in charge of a counterfeit
goods depot.
Conduct of 30. (1) The Attorney-General may, pursuant to the provisions of the Criminal
prosecutions. Procedure Code, appoint public prosecutors for purposes of cases arising under this
Act.
(2) The Board shall, for purposes of section 171 (4) of the Criminal Procedure Code,
be deemed to be a public authority.
Disclosure of 31. (1) If any person discloses to any other person–
information and (a) .any information with respect to any manufacturing process or trade secret
impersonation. obtained by him in premises which he has entered by virtue of powers of entry
conferred on him under this Act; or
(b) .any information obtained by him in the performance of functions under
this Act,
such person commits an offence unless the disclosure was made in, or for the purpose
of, the performance by him or any other person of the functions under this Act.
(2) If any person who is not an inspector purports to act as such, such person commits
an offence.
Offences. 32. It shall be an offence for any person to–
(a) .have in his possession or control in the course of trade, any counterfeit goods;
(b) manufacture, produce or make in the course of trade, any counterfeit goods;
(c). sell, hire out, barter or exchange, or offer or expose for sale, hiring out, barter or
exchange any counterfeit goods;

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 (d). expose or exhibit for the purposes of trade any counterfeit goods;
(e). distribute counterfeit goods for purposes of trade or any other purpose;
(f) .import into, transit through, tranship within or export from Kenya, except for
private and domestic use of the importer or exporter as the case may be, any
counterfeit goods;
(g) .in any other manner, dispose of any counterfeit goods in the course of trade.
Laying a 33. (1) Any holder of an intellectual property right, his successor in title, licensee or
complaint. agent may, in respect of any protected goods, where he has reasonable cause to
suspect that an offence under section 32 has been or is being committed, or is likely to
be committed, by any person, lay a complaint with the Executive Director.
(2) The complainant shall furnish, to the satisfaction of the Executive Director, such
information and particulars, as may be prescribed, to the effect that the goods with
reference to which that offence has allegedly been, or is being, or is likely to be,
committed, prima facie are counterfeit goods.
(3) Where the Executive Director is reasonably satisfied–
(a). that the complainant is a person entitled to lay a complaint under subsection (1);
and
(b) .that–
(i) .the goods claimed to be protected goods, prima facie are protected
goods; and
(ii) .the intellectual property right, the subject matter of which is alleged to
have been applied to the offending goods, prima facie subsists; and
(c).that the suspicion on which the complaint is based appears to be reasonable in the
circumstances,
the Executive Director shall cause appropriate steps to be taken in accordance with
section 23 (1).
(4) The preceding provisions of this section shall not preclude an inspector from
taking any appropriate steps on his own initiative in relation to any act or conduct
believed or suspected to be an act of dealing in counterfeit goods, provided the
provisions of this Act are complied with.
(5) Nothing in this section shall preclude the Executive Director from causing
appropriate steps to be taken in accordance with section 23 (1) in the event of an
infringement of an intellectual property right for which no complaint has been lodged
by the holder thereof in accordance with subsection (1) of this section.
Powers of the 34. (1) The owner of an intellectual property right, who has valid grounds for
Commissioner. suspecting that the importation of counterfeit goods may take place, may apply to the
Commissioner in the prescribed manner to seize and detain all suspected counterfeit
goods which are–
(a). goods featuring, bearing, embodying or incorporating the subject matter of
that intellectual property right or to which the subject matter of that right has been
applied; and
(b) .imported into or enter Kenya during the period specified in the
application:
Provided that the period may not extend beyond the last day of the period for which
that intellectual property right subsists.

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(2) For purposes of sub-section (1), the applicant may furnish to the Commissioner –
(a) .a specimen of the goods to which the subject matter of his relevant
intellectual property right relates;
(b) .sufficient information and particulars as to –
(i) .the subsistence and extent of that intellectual property right; and
(ii) .his title to that right.
(3) The Commissioner shall consider and deal with an application under sub-section
(1) within three working days and may grant the application if satisfied on reasonable
grounds that—
(a). the goods claimed to be protected are prima facie protected goods;
(b) .the intellectual property right, the subject matter of which relates to the
protected goods, prima facie subsists; and
(c). the applicant prima facie is the owner of that intellectual property right.
(4) When an application made under subsection (1) has been granted and notice
thereof given under subsection (5), the counterfeit goods of the type with reference to
which that application was made (hereafter called the stipulated goods), or suspected
on reasonable grounds to be stipulated goods, and imported into or entering Kenya
from time to time during the period determined by the Commissioner, which may be
shorter than the period applied for, may be seized and detained by the customs
authorities in accordance with the East African Community Customs Management
Act, 2005 subject to subsections (6) and (7).
(5) The Commissioner shall, by notice in writing, inform the applicant whether the
application has been granted or not, and–
(a) .if granted, state the period during which any stipulated goods being imported into
or entering Kenya will be made subject to seizure and become subject to detention
under subsection (4);
(b) .if not granted, state the reasons for refusal to be granted.
(6) For purposes of acting under subsection (4) in relation to goods that are stipulated
goods or suspected on reasonable grounds to be stipulated goods–
(a) an authorized customs officer shall seize the counterfeit goods or alleged or
suspected counterfeit goods, in accordance with subsection (1) or (4);
(b) the following provisions will apply mutatis mutandis in relation to an
authorized customs officer—
(i) .the provisions in accordance with or subject to which the powers
contemplated in section 33(4) may be exercised by an inspector so acting on his own
initiative;
(ii) the provisions by which any other power or any right, function, duty,
obligation, exemption, indemnity or liability is conferred or imposed on an inspector
so acting:
Provided that the Minister, at the request of the Minister for the time being
responsible for finance acting on the recommendation of the Commissioner, may, by
notice in the Gazette, exempt an authorized customs officer from any of the
provisions made applicable by this paragraph if satisfied that there are suitable and
appropriate alternative arrangements made by or under the Customs Management Act,
2005 that cover the purpose of the provision from which exemption is sought.
(7) Any person who suffers damage or loss caused by wrongful seizure, removal or

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 detention of goods alleged to be counterfeit goods pursuant to an application made to
the Commissioner shall be entitled to claim compensation for the damage or loss
suffered by him against the applicant:
Provided that compensation shall only be paid where the application for seizure and
detention was false or negligent or made in bad faith.
(8) The provisions of this Act shall not be construed so as to render the customs
authority or any of its staff or agents liable for–
(a) any failure to detect or seize stipulated goods;
(b) the inadvertent release of any such goods; or
(c) any action taken in good faith in respect of such goods.
(9) For purposes of this section, “customs authority” means the Kenya Revenue
Authority established under the Kenya Revenue Authority Act.
Exemption from 36. No duty shall be chargeable under the Stamp Duty Act in respect of any
stamp duty. instrument executed by, or on behalf of, or in favour of the Agency, which, but for this
section, the Agency shall would be liable to pay.
Regulations. 37. (1) The Minister may make regulations generally for the better carrying into effect
the provisions of this Act.
(2) Without prejudice to the generality of the foregoing, the Minister may in such
regulations prescribe–
(a) .anything required by this Act to be prescribed;
(b) .any inventory to be prepared or made under this Act;
(c) .any matter necessary or expedient for the proper and effective control,
management and administration of a counterfeit goods depot and the proper care of
the goods detained therein;
(d) .the manner and procedures for proper disposal of counterfeit goods;
(e) .any other matter that may be necessary or expedient for the proper and
effective administration of this Act.

SCHEDULE (s. 8)

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 PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD
Tenure of office.
1. Any member of the Board, other than an ex-officio member shall, subject to the provisions of
this Schedule, hold office for a period of three years, on such terms and conditions as may be specified
in the instrument of appointment, but shall be eligible for re-appointment, subject to a maximum of three
terms of office.
Vacation of office.
2. A member of the Board, other than an ex-officio member, may–
(a) at any time resign from office by notice in writing to the Minister;
(b) be removed from office by the Minister if the member–
(i) .has been absent from three consecutive meetings of the Board
without the permission of the Chairman;

(ii) .is convicted of a criminal offence and sentenced to imprisonment

for a term exceeding six months or to a fine exceeding ten thousand shillings;

(iii) .is convicted of an offence involving dishonesty or fraud;

(iv) .is adjudged bankrupt or enters into a composition scheme or

arrangement with his creditors;

(v) .is incapacitated by prolonged physical or mental illness or is

deemed otherwise unfit to discharge his duties as a member of the Board;
or
(vi) .fails to comply with the provisions of this Act relating to disclosure.

Meetings.
3. (1) The Board shall meet not less than four times in every financial year and not more than
four months shall elapse between the date of one meeting and the date of the next meeting.
(2) Notwithstanding the provisions of subparagraph (1), the Chairman may, and upon requisition
in writing by at least five members shall, convene a special meeting of the Board at any time for the
transaction of the business of the Board.
(3) Unless three quarters of the total members of the Board otherwise agree, at least fourteen
days' written notice of every meeting of the Board shall be given to every member of the Board.
(4) The quorum for the conduct of the business of the Board shall be seven members including
the Chairman or the person presiding.
(5) The Chairman shall preside at every meeting of the Board at which he is present but, in his
absence, the members present shall elect one of their numbers to preside, who shall, with respect to that
meeting and the business transacted thereat, have all the powers of the Chairman.
(6) Unless a unanimous decision is reached, a decision on any matter before the Board shall be
by a majority of votes of the members present and voting and, in the case of an equality of votes, the
Chairman or the person presiding shall have a casting vote.
(7) Subject to subparagraph (4), no proceedings of the Board shall be invalid by reason only of a
vacancy among the members thereof.

Disclosure of interest by Board members.

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 4. (l) If a member is directly or indirectly interested in any contract, proposed contract or other
matter before the Board and is present at a meeting of the Board at which the contract, proposed contract
or other matter is the subject of consideration, that member shall, at the meeting and as soon as
practicable after the commencement thereof, disclose the fact and shall not take part in the consideration
or discussion of, or vote on, any questions with respect to the contract or other matter, or be counted in
the quorum of the meeting during consideration of the matter:
Provided that, if the majority of the members present are of the opinion that the experience or
expertise of such member is vital to the deliberations of the meeting, the Board may permit the member
to participate in the deliberations subject to such restrictions as it may impose but such member shall not
have the right to vote on the matter in question.
(2) A disclosure of interest made under this paragraph shall be recorded in the minutes of the
meeting at which it is made.
(3) A member of the Board who contravenes subparagraph (1) commits an offence and is liable
to imprisonment for a term not exceeding six months, or to a fine not exceeding one hundred thousand
shillings, or both.
Execution of instruments.
5. Any contract or instrument which, if entered into or executed by a person not being a body
corporate, would not require to be under seal, may be entered into or executed on behalf of the Board by
any person generally or specially authorized by the Board for that purpose.
Minutes.
6. The Board shall cause minutes of all resolutions and proceedings of meetings of the Board to
be entered in books kept for that purpose.

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